The Abbeville press and banner. (Abbeville, S.C.) 1869-1924, September 24, 1918, Page FOUR, Image 4
trained judges and the most gifted of practioners. It is not with our laws,
for we hare them in vast volume; they are in accord with the wisdom and
experience of all the ages; and they have come from minds thoroughly
trained in legislative processes. It is not with the temper of our people,
for they are a justice loving folk. The difficulty is with the basis upon
which we interpret our laws, and render our court decisions.
Our legal machinery moves with the most extreme slowness. Months,
and even years, are required in the process of getting cases through the
courts. Each time an appeal is taken, the delay is not only added to, but
if-, is sometimes multiplied.
This process is a highly expensive one. The technical requirements
of legal procedure are so exact, that by this fact alone justice may sometimes
be perverted. Instead of justice being obtained by an impartial decision,
repeated appeals on the part of the stronger party, may result in
the side of justice being worn out and brought to defeat, for the mere lack
of funds. Yet justice is not a matter of wealth.
This fact often has the serious result of removing the right of justice,
from within the reach of the people who need it most. If our laws represent
the spirit of a democracy at all, they are designed to establish fairness
for all the people. It often happens, however, that only the richer can af ??-?
-f"ii rofncro nnH service. Whether or not the law i3
loru LU CIB1U1 blicu luii
perfect, its benefits should be denied to no man. It takes more than constitutional
statements, to make it equally available for all. The process by
which it is used must be simple, and it must not be beyond the reach of
Ihe ordinary purse.
All of this renders the results of litigation highly uncertain. At the
beginning of a case neither party can afford to base his conjecture of the
outcome, wholly upon the merits of the case. If either party is rich and
determined, each decision is but an added chapter in a long story. One side
r the other may be worn out financially, or appeals from court to court
may result in reversed decisions or declarations of unconstitutionality.
These decisions are not based upon the merits of the case. They are hased
pon the technical exactitude or inexactitude of the statutes and provisions
involved. Retrial may be called for; another appeal may be justified; or
' the case may be thrown from the courts altogether.
The remedy is really as simple as the problem. Our interpretation of
laws, simply needs to be made upon a more deeply founded basis. The law
must be made to do the thing it was intended to do, rather than to wait for
an indefinite period, while the mere husk of its formal expression, is be
ing tested apd contended over. The point is, that the letter of the law is
secondary to its spirit."
For a long time we have had two systems of jurisprudence?the common
law and equity.
The Bible tells us that the letter of the law killeth, but that the spirit
maketh alive. We shall undertake to show that the administration of the
cOmmon law, was founded upon the letter of the law, and that equity has
always reflected its spirit.
The most imnortflnt iudicial officers, during the developments of the
Roman or civil law, were the praetors, whose jurisdiction was co-extensive
with that of the English common law courts and the chancellor. The jurisdiction
of the praetors, which was exercised by means of formulas, and
in which a law person was appointed to decide the facts, was called his
"ordinary" jurisdiction. In the latter periods of the Republic, there arose
another jurisdiction termed "extraordinary." In causes arising under the
"extraordinary jurisdiction,- the praetor himself decided both the law and
the facts, without the intervention of a third party, and unhampered by i
wnniwimorto aa tn thp nrnnpr formula or kind of action.
OUJ VCVUUlVai WW VMV r c j
The "extraordinary" jurisdiction continued for a long time side by side
with the "ordinary", growing in extent and importance, until it became'
the only mode In common use. * I ***>l j
Under the Emperor Diocletion (A. D. 2$4) all causes in the provinces
VeiS required to be tried in this manner; and, finailly the same rule was
made .universal throughout the Empire. This event in the Roman jurisprudence
was in all its essential elements, similar to the recent legislation
(1873) in Great Britain and of the American States, by which all distinctions
between suits in equity and actions at law have been abolished, andj
the two jurisdictions comDinea in ine same proceeumg, auu CUII1CI1CU UF-|
on the same tribunal. The Praetors introduced new actions and new formulas;
also new rules for the consideration of the substantive law; thus
enabling them to soften the rigor of the old law, to remove its arbitrariness,
and to mould its doctrines so as to make them conform to the principles
of justice, equity and refined morality.
The new actions introduced from time to time, were wholly different,
both in principle and form from any that had existed under the old law;'
and by their use more than by any other means, the Praetors constructed!
a system of jurisprudence, founded upon equitable doctrines which finally i
supplanted the old jus civile, and became tne Koman law as it was scienun-i
cally arranged, by the great jurists of the empire; and, as is known to us, as!
the Pandects and Institutes of Justinian. .
"there are many striking features between the development of equity, j
in the Roman and the English law; the same causes operated to make it!
necessary, the same methods up to a certain point were pursued, and in j
principle the same results were reached. The differences aro^however, no less'
remarkable. No separate tribunal or department was made necessary in
the Roman jurisprudence, because the praetors were willing to do, what the
early English common law judges absolutely refused to perform?that is
to promote and control the entire legal development, as the needs of an adTancing
civilization demanded.
The English Judges made a new court and a separate department in-;
dispensible, while the Roman praetors accomplished every reform, by their'
own jurisdiction, and reserved unity in its jurisprudence.
Let us take a short retrospective view, as to the manner in which the'
common law was developed in England. It had its origin during the era!
of Feudalism, when the barons w^re the owners of nearly all the property.'
The feudal lords held thefr tenants in a: species of bondage, as will appear j
from the following oath, which the vassal was compelled to take, when he'
entered into the service of his landlord: "I will bear faith to you of life,'
. goods, chattels, and earthly worship, so help me God and these holy gospels!
flnrl " Proooiionto cnmo nf wViioh wp arc nnw followinc. were estab-:
lished during troublesome times, while violence and oppression every where'
prevailed, and the ordinary courts could give but little protection to the!
poor and weak; and when the powerful landowners were constantly invading
the rights of their inferiors, and over-awing the local courts. The bar-1
ons formally declared, that they would not suffer the kingdom to be govern- I
ed by the Roman law; and their influence was such, that the common lawj
. Judges even prohibited it from being cited in their courts. It may be said1
that the decisions they rendered were under duress, yet they constitute, to1
a large extent, the precedents which have been followed ever since.
There are no such inherant differences in the two systems as to render j
necessary two distinct and inconsistent modes of interpretation. In the;
first nlnpp if is alwavs more or less uncertain, whether thp richts of liti-!
gants will be determined, in accordance with the principles of the common
law or of equity; consequently the attorney finds it doubly difficult to advise
his clients as to their rights, and the results that may be anticipated in case
of litigation. In the second place, as the principles of the common law and
equity are declared to be inconsistent, both cannot be based upon justice,
equity, sound reason, good conscience, refined morality and Christianity.
Carlyle says: "It seems to me a great truth, that human beings can-not
stand on selfishness, mechanical utilities, economies and law courts; that
jf there be not a religious element between men, such relations are miserable,
and doomed to ruin." Itis true that the common law courts have
adopted, to a considerable extent, the moral principles of equity, otherwise
they would have been abolished long ago. And it is also true, that the law
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schools, realizing the necessity for a change of system, are beginning to '
teach the Civil Law, as a part of their curriculum.
The common law in its early development was founded upon tradition
and custom. So long as it was passing through its formative period, that
is, while it continued to be a lex non scripta, it was administered in accordance
with the principles of justice, reason and equity. But in course of time,
precedents were established by the decisions of the Judges, which were
considered almost as binding upon succeeding Judges, as acts of the legis- \
lature. It then became difficult to make new precedents, without trenching ;
upon those that had already been established. Hence, the common law be- ,
came, to a great extent, a lex scripta, positive and inflexible, therefore mak- (
ing it more difficult to apply the rules of justice and equity. ,
We desire to emphasize the fact, that there never was a time since the
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earnest nisiury ui tut; tuuunuu iov* wuivo, nuv** w?vj ..w MM.v ^
power, to make their decisions conform to the fundamental principles of (
reason, justice and equity. . 1
The dissatisfaction with the common law, has arisen from the manner
in which it has been adminiatred, and not from the fact it could not dis- ^
nen?i> imatifp nnH pmiitv. There has not been sufficient flexibility in its .
administration, to meet the demands of the times.
Mr. Pomery, in his Equity Jurisprudence, thus clearly and briefly points
out the superiority of equity over the common law as a system of jurispru- 1
dence: 1
"As the expensive tendencies of the common law are confined within ^
certain limits, and as its power to administer justice and to grant the varie- 1
ty of remedies needed in the manifold relations of society is incomplete.
the Enclish and American system of equity is prescribed and main- 1
tained, to supply the want and to render the national jurisprudence as a 1
whole, adequate to the social needs. It is so constructed upon comprehen- S
sive and fruitful principles, that it possesses an inherent capacity of expansion,
so as to keep abreast of each succeeding generation and age. It consists
of those doctrines and rules and primary remedial rights and remedies, 1
which the common law, by reason of its fixed methods and remedial system,
was either unable or inadequate, in the regular course of development to
establish, enforce, and confer and which if therefore either tacitly omitted '
or openly rejected. On account of the somewhat arbitrary and harsh na- 1
ture of the common law, in its primitive 3tage, these doctrines and rules of <
equity were intentionally and consciously based upon the principle o'f
morality by the early chancellors, who borrowed the jural principals from 1
the moral code and openly incorporated them into their judicial legislation. <
This origin gave to the system which we call equity, a distinctive character ''
which it has ever since preserved. Its great underlying principles which' are '
the constant sources, the never failing root of its particular rules, are un- 1
questionably principles of right, justice and morality, so far as the same 1
can become the elements of a positive human jurisprudence; and these prin- 1
ciples, being once incorporated into the system, and being essentially un- J
limited, have communicated their own vitality and power of adaption, to *
the entire branch of the national jurisprudence, of which they are, so to s
speak, the sub-structure. It follows, that the department, which we call ^
equity, is, as a whole, more just and moral in its creation of rights and ]
duties, than the correlative department which we call the 'law'!" As there
is no neressitv for two antagonistic constructions of the same Question, we 1
suggest that the following form of an Act be adopted by the Legislature: 1
That it shall be the policy of the Courts of this State, to construe both procedural
and substantive law, in accordance with the spirit, rather than the 1
le'tter thereof, and that full force and effect shall be given to the intention *
of the parties, in the case, whether arising on the law or equity side of the 1
courts. This will avoid technical constructions, and silence criticism on that
ground, ' : **" ' |-*t *.> i*?i - -? . ? ? ; - '
Not only should such an act be passed by the Legislature, but we should ^
bear in mind, that a solemn duty is imposed upon the courts, in this respect. 1
It'was the failure of the common law Judges, to discharge their duty, in allowing
a technical, arbitrary and narrow construction, not only in their
formulas, but of the substantive law, that has given rise to so much dissatisfaction.
The inherent distinction between the common law and equity
systems of jurisprudence, was so marked as to warrant such conduct on
the part of the common law Judges.
"During the early development of the common law, the procedure did
not allow but one of three judgments to be rendered, to-wit: for the recovery
of real property, for the recovery of specific personal property, or for
money. The Judges made no provisions for preventative relief., The
Judges not only refused to adopt additional remedies/but regarded compli- ^
ar.ce with its rules of procedure, as of more importance than the merits of 1
the case. :*>:? '
' ft is a travesty upon justice to allow two modes of construction in ^
determining the rights of litigants, and to make the result depend upon
the uncertainty of the question, whether the parties are entitled to legal
or equitable relief. Justice has a single, not a double standard dependent ^
upon the uncertainty of jurisdiction.
The main reason assigned by those who claim, that the common Law
' ix J At- - 1 J
IS superior to equity as a system, is, mat it rentiers wie law ??*uie itnu | ^
certain, on the ground that it is based upon precedents. It is true, the
common law, in its early history, did have that advantage,'but it no Ion- j
ger exists. For many years, equity has been following the precedents
established by its courts, and, at the present time, equity recognizes the
doctrine of stare decisis, as- fully as does the common law. Furthermore,
the certainty arising from a strict adherence to precedents, after they ]
have ceased to embody living principles, renders the law itself uncertain!
> I '
by continuing to recognize as law: that which has been supplanted byj
customs and new conditions, and has become obsolete.
The flexibility of equity, in applying its principles to new conditions]:
cannot properly be said to cause uncertainty. On the contrary, it makes J
I
justice more certain; and after all this should be the principal object of ev-|
ery system.
The law is made for practical uses. It listens to no metaphysical sub-j
tleties, and will not upon any terms, consent to regard that as right, which
every sound heart feels to be wrong. It may be stated as a general proposi-j
tion, that whenever the trial of a case brings about injustice to either
party, it l-esults from one of two causes; either the law is wrong and should
be changed, or a different question is presented by reason of new conditions,
to which supposed former precedents are not applicable.
In a recent opinion by Mr. Justice Holmes of the United States Su-|
preme Court, he announces the proposition, that no judgment should be j
rendered, that is against natural justice.
Although a precedent may not have been formally overruled, it is, I
nevertheless, error for the courts to follow it, if it has ceased to reflect
the customs, traditions and spirit of progress, arising out of new conditions.
The virtuous Chancellor D'Agusessau said very properly, that the
Temple of Justice is not less consecrated to the sciences than the law; andj
that the true doctrine which consisted in the knowledge of the spirit of
laws, was superior to a knowledge of the laws themselves.
One of the qualifications of an able judge is the element of statesmanship.
Several years ago a banquet was given in honor of Mr. Justice Harlan
in commemoration of the twenty-fifth anniversary of his tenure of
office, as a Justice of the Supreme Court of the United States. Among
those present was Mr. Roosevelt, then President of the United States. In
responding to a toast he paid a beautiful and well deserved tribute to Mr.
Justice Harlan, for the valuable contributions he had made by his able^
opinions, to the general jurisprudence of the country; but concluded wit>
the statement, that those paled into insignificance, in comparison with
his work as a constructive statesman, in the settlement of the great c .asipolitical
questions, that had come before that grand Court for adjudication,
11
arising out of the war between the States.
There is, however, in every court a discretionary power o
tion which it is incumbent upon every judge to exercise to the
reflecting the spirit, the customs, traditions and new condition
from progress and an advancing civilization, but always with a
to the doctrine of stare decisis.
i '
The Roman law recognized a plea known as "desuetudo,"
to the effect, that the law under consideration had become 'obi
senseless. It was not adopted as a part of the common law, 't
son that the law is a progressive science, and it was presumed
courts would construe the law, so as to reflect that which was
and not that which was obsolete and had ceased to be a living ]
.1
It is as much the duty of the courts, to reflect the spirit of
their decisions, as it is to rely upon precedents established und
conditions.
The failure of certain English Judges to recognize this fi
an amusing trial in 1818, which is thus described by an Amei
was then Envoy Extraordinary and Minister Plenepotentiary
United States:
"April 16, 1818. Went to the Court of King's Bench, U
arguments in a case of a Wager of Battle. The parties Were pr
through the courtesy of the judges, I had a seat on the Bencl
Mr. Justice Rnvlev. Tn the left nf him mat TnrH TCllenhnrnnorti
^^ . - - """ ? ? ------ y
the seat of the Cokes, the Hales and the Mansfields. To the 1
Ellenborougr were Mr. Justice Abbott and Mr. Justice Holroj
ancient law of England, when a person was murdered, the n
tive of the deceased, might bring an Appeal of Death, against
accused of the murder." Under this proceeding the accused a
:user fought. The weapons were clubs. The battle began at i
vr
ivas in the presence of the judges in whom also all formalities
ranged. Part of the oath of the combatants was that neither v>
,o witchcraft.
"If the accused was slain, it was taken as proof of his gt
iccuser, of his innocence. If ,the former also held but until sti
ilso attested his innocence. If either yielded while able to figh
2d his condemnation and disgrace.
v . "Afford, the appellor, had accused Thornton, the appel
nurder of one of his relations, and the latter desired to fight.,
sst tribunal of the most enlightened country in Europe, I was
i discussion as to whether a mode of trial for the dark ages, \
;n the nineteenth century. It was difficult to persuade myafelf
ty of the scene. Mr. Chitty, a lawyer of eminence, argued a
right of battle. Mr. Tindall argued on the other side. Fleta,
;he Year-Books, and other receptacles of ancient law were
Abundant ability was displayed on both sides, and the greates
gravity prevailed. The judges were in their robes. About seve
jat in front of them, all in gowns and wigs, listening with p
iention. Finally the judges decided, that Trial by Battle wa
For the law of Appeal of Death, had never been repealed."
The manner of reforming the rules of procedure, which in
ngs and practice, has been so often discussed throughout the i
;ry, that we shall express our views in regard to it very bru
Several years ago Congress passed an Act giving power
jreme Court of the United States to formulate rules of pr
jquity cases. The rules which they formulated have expedited
stration of justice to a very great extent.
The majority report of the Senate Judiciary Committee, on
:an Bar Assopiation bill, to permit the United States Suprem
formulate rules of procedure for suits at law, contains this u
IMIIMAIlf.
u^uuiciib* ,
"It is an anomaly to intrust a tribunal with grave and
iuties, and deny 'it the power to determine the manner in whi
;ies shall be discharged. The Senate would not for one moment
dea, of having some outside body determine the way, in whic
ts business. -Each house of Congress, and every legislative
:ountry, makes its own rules of procedure. The same is true
iially every administrative body, state and federal. Congress i
-iQccinc* lonra tn ho ovpfntpd hv nrip of thp pxecut:ivp rienartmer
riding that the head of the department, shall make such rules
;ions as may be necessary, to carry the law into operation,
seem to stand almost alone in this respect. These great tri
"rusted with the delicate and responsible duty of interpreting i
;ering the law, are certainly qualified to determine the mode
vhich will be best calculated, to enable them to discharge the
nlities surely and promptly."
The courts have decided time and again, that the power t<
)f procedure, is inherent in the courts, and incidental to the
;ion of the laws. And, therefore, that it is a judicial function
vay3 been so regarded in England.
Section 489 of the Code, authorizes ana empowers uie M
he Supreme Court, to revise and amend the Rules of the Ciflg
md establish such additional rules as may be deemed necessai^B
ate the practice in the Circuit Courts: Provided, such altersH
litions be not inconsistent, with any of the Statutes of the St^H
And Section 490 is as follows: "The Justices of the Su^H
ihall, from time to time make, such, rules for the orderly cond^B
less in said Court, as they may deem proper, not inconsistenMj
3ode of Procedure."
(Continued on Page Six.)
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